1 Tuesday, 20 November 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.15 p.m.

6 [Trial Chamber confers]

7 JUDGE PARKER: Good afternoon.

8 If I could remind you, Mr. Kuehnel, of the affirmation you made,

9 which still applies.

10 THE WITNESS: [Interpretation] [No interpretation].

11 WITNESS: THOMAS KUEHNEL [Resumed]

12 [Witness answered through interpreter]

13 JUDGE PARKER: Mr. Mettraux.

14 MR. METTRAUX: Thank you, Your Honour.

15 Cross-examination by Mr. Mettraux: [Continued]

16 Q. Good afternoon, Mr. Kuehnel.

17 A. [In English] Good afternoon.

18 Q. If the registry could bring up P83, again, please.

19 Mr. Kuehnel, this will again be the Law on Amnesty, which I think

20 I showed you yesterday already.

21 And I would ask the registry to go directly to page 2 of that

22 document, please.

23 Mr. Kuehnel, at the time when you conducted the search of the

24 criminal records of the SVR and then of the Ministry of the Interior, were

25 you aware that, under the law of amnesty if criminal charge have not been

1 brought against the persons mentioned in Article 1 and 2 of the law, these

2 charges shall not be brought.

3 Were you aware of that?

4 A. [Interpretation] Well, this can be seen from the amnesty law. The

5 implementation -- or the implication of this has for the entry into the

6 register. In practical terms I don't know how this is implemented.

7 With regard to the events in Ljuboten, certainly charges were

8 written and further prosecuted until the amnesty law came into force.

9 Q. But at the time when you conducted this search of two different

10 databases were you aware of that particular provision, Article 4 of the

11 Law on Amnesty?

12 A. Yes, of course. Yes, I can see it here too.

13 Q. Were you aware also that one of the persons who had benefitted

14 from the law of amnesty was Mr. Gzim Ostreni. Are you aware of that fact?

15 A. Well, I can't say that the knew at the time. It's a -- simply a

16 conclusion, yes.

17 Q. But you have become aware of that fact during your investigation.

18 Is that correct?

19 A. Well, I didn't see any document that mentioned the name Gzim

20 Ostreni expressis verbis in connection with the amnesty, but as I say this

21 is simply a conclusion.

22 Q. Well, perhaps I will show you a document then. This is Rule 65

23 ter 1D1083.

24 Mr. Kuehnel, the document which I am about to show you is a

25 document called the National Liberation Army in the federal republic --

1 the former Yugoslav Republic of Macedonia. It has been prepared by the

2 EUMM and it is undated, and we have received it from the Prosecution.

3 And if I could ask the registry to turn to the next page, please.

4 Perhaps I should ask you this: Have you seen this document before

5 in the course of your investigation?

6 A. It may well be but I can't remember exactly, but from my first

7 impression, yes, just looking at it briefly.

8 Q. And if you look at the bottom of the page there's a little CV, to

9 call it that, of Mr. Ostreni and if we can turn to the next page, please.

10 Mr. Kuehnel, if you look at the last line that covers the

11 description of the activities and otherwise of Mr. Ostreni before

12 Mr. Veliu, there is a sentence which says: "Amnestied on 14 March 2002 by

13 the amnesty law in FYROM."

14 Does that help refresh your memory about the fact that Mr. Ostreni

15 had been amnestied in March of 2002?

16 A. Yes, of course. But my previous answer refers to documents which

17 were directly in front of the court which said that he was amnestied with

18 reference to the amnesty law. This is a secondary source.

19 Q. Yes, I'm grateful for that. And are you aware of the fact that

20 despite his having been amnestied under domestic law, under Macedonian

21 law, the state prosecutor forwarded to you some information regarding the

22 activities of Mr. Ostreni, together with a proposal that your office

23 should prosecute him. Are you aware of that?

24 A. Well, I was aware of that in a rudimentary form. As I said, it

25 refers to the time before I started at the OTP and obviously it refers to

1 the Albanian cases, in quotation marks. And as I said before, I

2 personally did not work on these cases. But more or less I could agree

3 with you that we received information from the state prosecutor.

4 Q. And are you aware of the fact that between your office and the

5 state prosecutor. This particular case would generally be referred to as

6 the NLA leadership case. Is that correct?

7 A. Yes, that's fair to say, I think.

8 Q. And is it also correct that the reason why the Office of the

9 Prosecutor would have been capable of prosecuting such a case is that

10 despite the amnesty which applied as far as local law and local

11 jurisdiction are concerned, the law on Law on Amnesty, provided in one of

12 its position -- provision, I apologise, for the possibility of cases being

13 prosecuted by the ICTY and therefore escaping the Law on Amnesty. Is that

14 correct?

15 A. I don't know exactly, and I can't really give you a precise

16 answer, because from my assessment, I think there seems to be competitive

17 legislation in these matters, and I don't have the expertise to make a

18 substantiated comment on that. I think this is a fair answer. I really

19 don't have the necessary expertise.

20 Q. Well, perhaps I will show what is Exhibit P83 again.

21 And if the registry can please turn to the next page.

22 Mr. Kuehnel, I will ask you to look at the last paragraph which is

23 still in Article 1 on the Law of Amnesty. It is at the top of the page.

24 I will read it out to you. It says this: "The provisions of paragraph 1,

25 2 and 3 of this Article do not apply to persons who have committed

1 criminal acts related to and in connection with the conflict in the year

2 2001, which are under the jurisdiction of and for which the 1991

3 international Tribunal for prosecution of person responsible for serious

4 violations of international humanitarian law in the territory of the

5 former Yugoslavia will instigate proceedings."

6 Can you agree that this provision, Mr. Kuehnel, suggests that the

7 only cases capable of escaping the application of the Law on Amnesty are

8 those that would be as the Article says, for which proceedings will be

9 instigated, is that correct, before the ICTY?

10 A. Again, I can't comment on this question, because I have the same

11 reasons as I stated before. This is a topic for which I think I don't

12 have the necessary expertise.

13 Q. Very well. I'll move on to something more relevant perhaps to

14 your activities.

15 Do you recall being shown a telephone record of a particular

16 telephone which you believed to have been used by Mr. Tarculovski during

17 the weekend 10-12 of August of 2001. Do you recall that?

18 A. Yes, of course.

19 Q. And independently from those records, Mr. Kuehnel, can you recall

20 obtaining information or material to the effect that during that

21 particular weekend, the president of the Republic of Macedonia,

22 Mr. Trajkovski, had sought to reach Mr. Tarculovski on the phone. Do you

23 recall seeing such evidence?

24 A. Yes. There are various approaches to this. The information, it

25 can be found in documents dating from the time and also from the statement

1 of witnesses, which were drawn up later or which were established by the

2 OTP. By way of example, I could refer to the statement by Mr.

3 [indiscernible], the statement of Mr. Despodov, who also mentioned this

4 conversation, the Kostadinov report, and some other documents.

5 Q. And simply for the transcript, Mr. Kuehnel, I think you mentioned

6 Kopacev and Kostadinov report.

7 A. Yes. I don't know whether they are both listed in one document or

8 not. I imagine it was in one document, but I really can't tell because my

9 memory fails me as far as the documents are concerned.

10 Q. Do you recall being asked about four particular entries in the

11 telephone records of the particular phone which we've discussed already

12 for quite some times which were attributed to a telephone used by the

13 first wife of Mr. Tarculovski. Do you recall that?

14 A. Yes, I do.

15 Q. And do you recall that one such call was made on the 10th of

16 August at 7.02, one call at 11 August at 11.13, and two calls on the 12

17 August of 2001, one at 12.16 and the other one at 11.16. Do you recall

18 that?

19 A. I certainly can't recall all the dates and times. But I do

20 believe your summary is accurate.

21 Q. And do you recall seeing information in the course of your

22 investigation to the effect that in the course of one such conversation

23 perhaps one of those or another, in any case during a conversation between

24 Mr. Tarculovski and his first wife, Mr. Tarculovski asked his first wife,

25 Ms. Valentina Radulovic, that they should hang up the phone because he was

1 being expected to be called by the president of the Republic. Do you

2 recall that evidence?

3 A. Your Honour, in order to give a reply, I don't really know whether

4 I can deal with this in open session or not.

5 JUDGE PARKER: Private.

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17 [Open session]

18 THE REGISTRAR: Your Honours, we're in open session.

19 MR. METTRAUX:

20 Q. Mr. Kuehnel, I'd like to ask you questions about a different

21 topics. They are general questions about information which you said you

22 obtained about the disciplinary commissions and the disciplinary process

23 in the year of 2001 and you recall indicating that you obtained the

24 information which you gave to the Chamber from Ms. Naumova. Is that

25 correct?

1 A. Yes, that's correct.

2 Q. Could you indicate, Mr. Kuehnel, what language you used to

3 communicate with Ms. Naumova?

4 A. [In English] Well, I used the English language and this was

5 interpreted by an interpreter into the Macedonian language and back --

6 back and forth.

7 [Interpretation] I could have said this in German.

8 Q. Yes, thank you. Is it correct also that a part of your

9 conversation with Ms. Naumova was done directly English-to-English without

10 the assistance of an interpreter?

11 A. That's correct. Some few parts of this conversation were

12 certainly in English, also conversations not necessarily pertaining to the

13 subject matter. But everything that was conducted regarding the subject

14 matter was handled in English and Macedonian.

15 Q. So are you suggesting that you didn't talk to Ms. Naumova in

16 relation to the matter of disciplinary commission directly in English with

17 her; or are you saying, in other word, that only those aspect of your

18 conversation which did not relate to the disciplinary commission were

19 conducted from English and back English?

20 A. No. As I have already stated, certainly parts of the conversation

21 were in English or Ms. Naumova answered in English. But the main part of

22 the conversation was conducted with the aid of an interpreter.

23 Q. And you were satisfied that the level of communication was

24 sufficient to ensure a mutual understanding of what was said by you to

25 Ms. Naumova and by Ms. Naumova back to you. Is that correct?

1 A. Yes, that's correct, with regard to what I put down in the

2 investigator's note, and it must also be in conjunction of the fact that

3 it is an investigator's note and the report applies to those -- to the

4 days in question and the information that I have received or the questions

5 that I have asked, they were referring to the level, which would allow me

6 to understand the mechanism, the procedure regarding the disciplinary

7 files, and how the -- these files were stored, and I also wanted to get an

8 example with -- with a file for how such a procedure -- such proceedings

9 would be conducted.

10 It shouldn't be understood that information that I have received

11 would be of legal matter. I didn't start a discussion or did [as

12 interpreted] write down parts of a conversation which were referring to --

13 which was referring to Articles or to formal laws. And as a kind of

14 quality assurance, I had this investigator's note checked by our

15 interpreter, and only then I filed this note.

16 Q. Well, just a matter for the transcript, Mr. Kuehnel, if I may, at

17 page 11, line 2, you are recorded as saying the following: "I didn't

18 start a discussion or," and then there's a word missing, "write down part

19 of the conversation," and I think the transcript didn't capture whether

20 you said did or didn't. Would be Page 11, line 5.

21 A. [In English] Moment.

22 [Interpretation] Yes, I can see it. I'm just going to read --

23 read.

24 Yes, I can see it now. I understand.

25 Q. And could you clarify whether you said "I didn't write down" or "I

1 did write down"?

2 A. Yes, I did -- did not write it down, referring to a discussion in

3 formal law. I didn't have a legal discussion with Ms. Naumova. It was

4 about access to the archives, the -- to understand the filing system, and

5 also the practical handling of such a disciplinary procedure.

6 Q. Thank you for that, Mr. Kuehnel. Is it correct also that did you

7 not take a statement from Ms. Naumova. Is that correct?

8 A. Yes. I think I have already explained that before. It's an

9 investigator note referring to the conversations held within that

10 particular time-frame, and it is not a formal statement. Ms. Naumova was

11 not invited to give a statement.

12 Q. And she didn't signed or otherwise adopt the content of your

13 note. Is that correct?

14 A. Yes, it is correct.

15 Q. And did you give a copy of your notes to Ms. Naumova?

16 A. No, I didn't. That's not the way they handle it, anyway, with

17 regard to investigator notes. And it's not done as regards witness

18 statements. It is not part of the procedure to hand out copies of our

19 interviews.

20 Q. I think you've indicated already that Ms. Naumova worked as a

21 lawyer for the head -- or she was at the time, I believe you said, the

22 head of the legal department of the section for common affairs, legal

23 affairs and personal affairs. Is that correct?

24 A. That is correct, with regard to the sector for common affairs and

25 she was the head of legal affairs and not personal affairs.

1 Q. And do you know if in her career Ms. Naumova had ever been a

2 member of the permanent disciplinary commission?

3 A. As far as I know, no, because this disciplinary commission is made

4 up of these various missions [as interpreted]. I did not talk about it to

5 her. What I do know, what she did say was that she has had some legal

6 training, has been in this position for six months, and prior to that, she

7 was a legal advisor for either public security -- I can't recall at the

8 moment. At any rate, she told me that she had had a 16 years work

9 experience. That's as far as how far I remember her CV.

10 Q. Can you recall what her position was in August of 2001?

11 A. No. As I've already told you, I didn't talk to her about it.

12 Q. And do you know if she ever was the member of any disciplinary

13 commission, permanent or otherwise?

14 A. I cannot recall this at the moment. I would need to read up on it

15 in the files, all the files that I have seen. But it was not really a

16 matter that I was investigating. As to whether it was like that or not, I

17 cannot tell.

18 Q. And is it correct that the two records of disciplinary proceedings

19 that you received were provided to you not by Ms. Naumova but by

20 Ms. Zlatareva [phoen]. Is it correct?

21 A. Both persons were present. I would need to refer to my

22 investigator note how -- who handled this. I know that I asked

23 Ms. Naumova who had done this, but I cannot give you a precise answer at

24 this moment in time.

25 Q. Well, let me ask you than a more general question about the

1 commissions.

2 I believe you indicated that you understood Ms. Naumova to suggest

3 to you that there were 12 permanent SVR-level commissions, is that

4 correct, disciplinary commissions?

5 A. Yes, for the year 2001.

6 Q. And did you verify or did you take any step to verify whether that

7 was in fact the case?

8 A. We had an organigramme, an organisational structure of the year

9 2001, and I counted and found that there were 12 SVRs. That's the only

10 verification that I carried out.

11 Q. I think you indicated that, in addition to these 12 commissions

12 which you understood Ms. Naumova told you existed in 2001 at the SVR

13 level, you understood her to suggest that there were a number of

14 additional, quote/unquote, special disciplinary commissions. Is that

15 correct?

16 A. Yes, that is correct. But when -- I think I explained the

17 term "special," but can I do that again, if you wish me to do so.

18 Q. Perhaps I'll ask you the questions in relation to some of them.

19 Is it correct that one of the other commissions, to call them that, which

20 you understood to exist in 2001 was a commission for border police. Is

21 that correct?

22 A. Yes, it's correct.

23 Q. And what step did you take, if any, to verify whether that was in

24 fact the case and whether you had understood Ms. Naumova properly about

25 this particular commission?

1 A. No, I asked her to explain it to me. I went to these archives

2 without any prior knowledge about the structure. I listened to the

3 information. Of course I asked questions about so-called appointment

4 orders which would apply to the SVRs and other units and which would tell

5 us which commissions did exist. When looking at the lists of 2001 and

6 2002, I also realised that there were disciplinary actions within the

7 order of the border police. I don't know whether I can draw a conclusion

8 as to a commission. I don't -- I can't really tell you.

9 Q. That was my next question, Mr. Kuehnel. Did you see in the review

10 of the material which you've made any indication that a commission, a

11 disciplinary commission, specifically for the border police existed in the

12 year 2001?

13 A. I cannot answer this question at this moment in time. Normally I

14 would say no, but I -- I can't give you a positive answer here.

15 Q. Is it correct that you also understood Ms. Naumova to suggest to

16 you that in 2001 there existed a disciplinary commission for the

17 centralised police services. Is that correct?

18 A. Yes, that's correct. And I think I also mentioned that this

19 structure was more or less identical, even though the names of this

20 structure had changed.

21 The term, "centralised police services," was certainly only

22 introduced after the year 2001 and refers to the -- to the central

23 structure within the MOI.

24 Q. And what steps, if any, did you take to verify what you understood

25 Ms. Naumova to tell you at the time; namely, that in 2001 there was a

1 disciplinary commission for the centralised police services?

2 THE INTERPRETER: Would Mr. Mettraux kindly wait for

3 interpretation to finish before asking his questions.

4 MR. METTRAUX: Yes, I apologise.

5 THE WITNESS: [Interpretation] Basically the same applies, as I

6 stated before, I understood this information and wrote it down, looked at

7 the files, and also looking -- and also asked question regarding the

8 appointment order of the various units, the various commissions. That's

9 all I can say about it.

10 MR. METTRAUX:

11 Q. And in your review of the material, did you come across any

12 documentary evidence which would have suggested that in 2001 there indeed

13 existed a disciplinary commission for the centralised police services?

14 A. As I've already said, the name certainly didn't exist as such, but

15 the structure did exist, and it could be -- could be recognised.

16 These centralised police units, for example, also mean units of

17 the Ministry of Interior, such as the special units, the Tiger units, et

18 cetera.

19 Q. Sorry, Mr. Kuehnel, I wasn't asking about the centralised police

20 services themselves but the commission which you say existed in 2001 in

21 relation to these services.

22 Did you see any documentary evidence that such a commission

23 existed in 2001?

24 A. Expressis verbis, I didn't see it. But I understood that these

25 were the commissions of the Ministry of the Interior.

1 Q. And you understood this because this is what you believed

2 Ms. Naumova had told you. Is that correct?

3 A. Yes. And also because of her explanation about the figures named

4 in conjunction with these commissions. One commission per one SVR, plus

5 the commissions for the MOI, for the centralised units, and these two

6 extra, not special commissions, for DBK and the border police.

7 Q. So you would be surprised if in fact I would be -- I would put to

8 you that in 2001 there was no such thing as a commission for centralised

9 police service or for the border police, but that those were created later

10 in time. Would you be surprised?

11 A. I wouldn't be surprised, possibly, because I wrote it down as I

12 heard this particular count, I told you that the name has certainly

13 changed. If you have got other information, then it might well be. I

14 don't know.

15 Q. Do you recall that you indicated that you also understood

16 Ms. Naumova to have told you that the minister of the interior had the

17 ability to initiate disciplinary proceedings. Do you recall that you

18 understood Ms. Naumova to make that suggestion to you?

19 A. Yes, that's how I have understood it.

20 Q. And do you recall if Ms. Naumova at that time had given to you any

21 indication of the legal basis which she understood or you understood to be

22 relevant to this matter?

23 A. I cannot recall that. All I can say is that I wrote it all down

24 in my investigator's notes. That's all. No more, no less. I don't want

25 to talk about legal issues, because that was not my intention, and these

1 were not the questions that I asked Ms. Naumova. It was a practical

2 approach to archives. Also, with explanations about procedures and the

3 files.

4 Q. And in your review of the files from the disciplinary commissions,

5 did you find examples of the minister, whether Mr. Boskoski or his

6 predecessor or his successor, initiating disciplinary proceedings?

7 A. As a rule, I didn't see such things. I must think as to whether I

8 have seen one of these files or not.

9 Q. Is it correct, Mr. Kuehnel, that in the files that you reviewed,

10 the initiation of the disciplinary proceedings was systemically done by

11 the immediate superior of the person charged with a disciplinary offence.

12 Is that correct?

13 A. That's correct. Systematic approach was that it was normally the

14 superior who initiated it. But one also has to say that some of these

15 considerable files did not go through those four necessary steps. I saw

16 some which consisted of the proposal of -- to the minister and the

17 decision of the minister. And I saw some which only had the minister's

18 decision. This could be seen in the initial reports in some cases.

19 Q. Let's take a -- an example of the files that you reviewed and

20 which was shown to you by my colleague, the example of Mr. Mandarovski.

21 Is it correct that the process, if you wish, was put in motion by an

22 official note prepared by Mr. Risto Galevski. Is that correct?

23 A. In this case, I can say yes. There were actually two documents

24 that came to my notice. One was the formal application to instigate

25 proceedings and the second was an appended note, a note to the file, and

1 one was from Risto Galevski and the other I think from Goran Mitevski, had

2 been signed by him. I think we can look that up. It shouldn't be a

3 problem.

4 I would like also to comment on my previous answer. By corollary,

5 I didn't see any single file which contained a decision from anyone else

6 other than the minister with his signature. I only saw decisions signed

7 by the minister. This refers to the files that I saw from the time in

8 Dosta Dimovska, Mr. Boskoski, and Hari Kostov, so this was how things

9 looked like to me at the time.

10 Q. Yes, I'm grateful for that. We'll take it one step at the time

11 the process which you've described I think in four steps.

12 And if the registry could bring up Exhibit P526, please.

13 Mr. Kuehnel, this will be the file that we've just discussed the

14 file -- disciplinary file of Mr. Mandarovski Toni.

15 And if the registry could move to what I believe to be page 15 of

16 this document.

17 Mr. Kuehnel, I'll ask you to start from the end of the file. It

18 would be N006-6091 to 6092, please.

19 Mr. Kuehnel, this would be the last document in you paper version

20 if you prefer to use this. Do you agree that is the first document

21 chronologically which appeared in the file of Mr. Mandarovski, is that

22 correct, the one dated 28th of May 2001. It's an Official Note submitted

23 by then Colonel Risto Galevski. Is that correct?

24 A. Yes, that's correct. This is the document I referred to as a file

25 note.

1 [Trial Chamber and registrar confer]

2 MR. METTRAUX: Your Honour, we understand that it would be

3 preferable not to put the document on the screen.

4 JUDGE PARKER: Yes.

5 MR. METTRAUX: I apologise. Thank you.

6 Q. Mr. Kuehnel, do you agree that this particular Official Note was

7 sent or dispatched, as it is said, to the Ministry of Interior, the

8 director of the public safety bureau to the analysis and investigation

9 admission and to the SPKR, which we understand to be the legal and

10 personnel department of the Ministry of Interior. Is that correct?

11 A. Yes, at least that's what is written here.

12 Q. And can you recall that at that time, on the 28th of May of 2001,

13 Mr. Galevski was then the head of the uniformed police of the MOI. Is

14 that correct?

15 A. Yes. I know this title by Mr. Risto Galevski, and I seem to

16 remember this document without remembering the exact date.

17 Q. And is it correct the reason why the Official Note in relation to

18 Mr. Mandarovski is prepared by Mr. Galevski is the fact that at that time

19 the Tiger unit had been resubordinated to the police or to, more

20 specifically, the uniformed police. Is that correct?

21 A. That may well be, but I'm not absolutely sure, not at the moment.

22 Q. Well, perhaps I will show you the first page of that document.

23 This would be N006-6076.

24 THE INTERPRETER: The interpreters kindly ask the Defence counsel

25 to wait for the translation to finish and the interpreters also ask the

1 witness to adjust the microphone so that he speaks into the microphones.

2 MR. METTRAUX: Mr. Kuehnel, I have been warned and you have

3 received a request about the microphone, thank you.

4 Q. Mr. Kuehnel, this is the first document and the first page of that

5 file which you've copied and we will come back to that particular document

6 in a moment. But at this stage I would like to draw your attention to the

7 third paragraph, starting under, Statement of reasons. It starts with the

8 words: "On 25th of May, 2001."

9 Can you see that?

10 A. Yes, I can.

11 Q. And if you go down four lines from that -- the beginning of that

12 paragraph there's a sentence starting with the word: "The minister of the

13 interior," and I will read it out to you.

14 It says this: "The minister of the interior was also present at

15 this conversation, after which, in order that all weaknesses and

16 misunderstandings be cleared up he said orally that the ESZ was to be

17 removed from his direct competence and placed under the command of the

18 police from that day onwards."

19 Do you agree that, as this document indicate and from the 25th of

20 May, 2001 onward, the ESZ Tiger had in fact been resubordinated to the

21 police. Is that correct?

22 A. That's what is written here. That may well be. It doesn't have

23 to be. What I can see here, that it is obviously a decision on the part

24 of the minister. The minister obviously is exercising effective control.

25 Whether this is a tactical decision for a particular period of time or an

1 administrative decision is something that I don't know.

2 Q. Well, I'm grateful for the suggestions you're making. But do you

3 agree that what is clear from this sentence, in any case, is that the unit

4 itself had been resubordinated by a decision of the minister of that day

5 to the police. Is that correct?

6 A. Yes, that is what this sentence says. I hope my answer wasn't too

7 rapid in succession.

8 Q. Could we now turn, please, to page 13 of that document. It's

9 N006-6089 to N006-6090. Thank you.

10 If we can go to the top of the document, please. Thank you.

11 Do you recognise that document, Mr. Kuehnel? This is the second

12 document in chronological order that you copied from this file and this

13 one is the one that you've just mentioned. It's a document, a motion for

14 the undertaking of proceedings to determine responsibility. It's dated

15 the 30th of May, 2001. And it is signed by the director of the public

16 security bureau, Mr. Mitevski. Do you agree?

17 A. Yes, I agree with you.

18 Q. And do you agree that in the legal basis or the reference to the

19 relevant legal provisions that Mr. Mitevski makes in relation to this

20 motion for proceedings to determine responsibility, he refers to Article

21 143 of what is called here the MVR labour agreement, which is in fact the

22 collective agreement. Is that correct?

23 A. Yes, that's correct. I agree with you, Mr. Mettraux.

24 Q. And are you aware of the fact that under this particular

25 provision, Article 143 of the collective agreement, the director of the

1 public security bureau, in this case Mr. Mitevski, was one of the persons

2 permitted and entitled to initiate disciplinary proceedings?

3 A. Well, I agree to the extent that this is what the file says. But

4 whether this was true from a legal point of view, I don't know. I can't

5 comment the law. It's not up to me. But what I see from the document,

6 yes.

7 Q. Well, perhaps I'll show you -- it's Exhibit P382, please.

8 Mr. Kuehnel, what I'm about to show you is the collective

9 agreement. This is an exhibit, Exhibit P382.

10 And I will ask the registry, please, to turn to page 27 of that

11 document. This would be N002-6375.

12 And, Mr. Kuehnel, I'll ask to you focus on Article 143 which was

13 just mentioned in the decision or the -- sorry, the motion, as it is

14 called, prepared by Mr. Mitevski, and I'll ask you to locate the fifth

15 paragraph of that particular Article. It starts with the words: "The

16 proposal can be submitted ...".

17 Can you see that? It says this.

18 A. Yes.

19 Q. "The proposal can be submitted by the under-secretary, the director

20 of the directorate, and the employees authorised by the minister." Can

21 you see that?

22 A. Yes, I can.

23 Q. And do you agree from that provision that as the director of a

24 directorate, Mr. Mitevski was permitted and entitled to initiate a

25 disciplinary proceeding. Is that correct?

1 A. You can conclude it from the document.

2 Q. And do you agree also from that particular provision that the

3 collective agreement - I will come back to it in a moment - does not give

4 this authority to the minister himself. Is that correct?

5 A. Well, I agree with what you've read out.

6 Q. And if can you turn --

7 JUDGE PARKER: Mr. Mettraux, could I simply indicate that if it is

8 your proposition that an Article which says that people authorised by the

9 minister may do something precludes the minister from doing it personally,

10 you may have to spend some little time persuading the Chamber.

11 MR. METTRAUX: We will do so, Your Honour. We will see in

12 practice how this is actually done in a moment with Mr. Kuehnel.

13 Q. Mr. Kuehnel, is it correct that the -- following the motion by the

14 director of the public security bureau at the time, then the commission

15 itself was seized of the matter. Is it correct?

16 A. I'm terribly sorry but I don't understand your question.

17 Q. I should be clearer about this.

18 Following the motion prepared by Mr. Mitevski that I have just

19 shown to you for the initiation of a disciplinary proceedings against

20 Mr. Mandarovski, is it correct that the next step or the next matter that

21 took place was for a commission to seize itself of the matter and to hear

22 evidence, quote/unquote, about the case. Is that correct?

23 A. Yes, I could agree with that, yes. You also see that the

24 discussion took place, that is the hearing.

25 Q. And you've indicated that the next step would then be for the

1 commission to prepare a proposal to the minister. Is that correct?

2 A. Well, obviously, as I explained before, one step or one decision

3 has to be taken upstream after the hearing of the witness or the accused,

4 obviously a decision has to be taken as to whether the proceedings will be

5 further prosecuted or not, and the next step would be a proposal made to

6 the minister.

7 Q. And you've explained the steps already to my colleague. And after

8 the proposal is forwarded on to the minister, the minister will take a

9 decision in relation to this particular case. Is that correct?

10 A. Yes, that's correct. And I think I also said that it was often

11 the case or at least, as I saw and I heard, that with the proposal, a

12 formulated decision was sent to the minister.

13 Q. And is it correct that in disciplinary matters the last word is

14 not with the minister himself but with a commission at government level

15 which may be seized of an appeal by the employee who is the subject of the

16 proceedings. Is that correct?

17 A. That is a legal discussion. What I understood was that the

18 disciplinary proceedings were concluded formerly with a decision by the

19 minister. But there is a possibility to make an appeal, and this appeal

20 would go to the government and is an independent procedure, independent of

21 this decision. This is how it was explained to me, but for exact wording

22 I would have to refer to my investigator note. This what I understood,

23 this what I wrote down and this is what I had checked in terms of the

24 translation. Perhaps not very comprehensively but that is what it was, no

25 more and no less.

1 Q. Perhaps I will show you the example which we have front of you.

2 If we can go back to Exhibit P526, please. It is under seal.

3 Thank you.

4 And if I can ask the registry to turn to the second page of that

5 document. And if we can go to the next page.

6 Q. Mr. Kuehnel, what I'm going to show you is the second page of the

7 decision signed by the minister, Mr. Boskoski, on the 9th of July of 2001,

8 in the case of Mr. Mandarovski.

9 Thank you.

10 And, Mr. Kuehnel, I'll ask to you go down to the -- almost the

11 bottom of that document, and identify a paragraph which starts with the

12 words: "The officer may appeal ..."

13 Can you see that?

14 A. Yes, I can see it, Mr. Mettraux.

15 Q. It says this: "The officer may appeal against this decision to

16 the industrial relations appeals commission of the government of the

17 Republic of Macedonia within 8 days of receipt of the decision. The

18 appeal is to be lodged via this ministry."

19 Do you agree that this is consistent with what Ms. Naumova told

20 you on that point, namely that an employee who would have been or would

21 have received a sanction, a disciplinary sanction to a decision had the

22 possibility to appeal to a labour commission at the government level. Is

23 that correct?

24 A. That is correct. And it looks like a standard, legal piece of

25 advice.

1 Q. Is it something which Ms. Naumova told you during your discussions

2 with her that there were some basic principles of natural justice that

3 applied to all administrative procedures in Macedonia, including to

4 disciplinary matters. Is that something you were made aware of?

5 A. Well, I'm sorry, I can't tell you, Mr. Mettraux.

6 Q. Perhaps the question was a bit too general.

7 Did Ms. Naumova suggest to you that one of the principle that

8 applies in administrative matters is the proposition that the authority

9 competent to decide a particular matter in administrative law may not be

10 the same authority what that has initiated that procedure against an

11 employee. Did she tell you this?

12 A. That is a possible interpretation of this information, but whether

13 this was actually the case or not, I really don't know. It would also be

14 imprecise to define it in such terms.

15 Q. Are you aware perhaps that under the book of rules of the Ministry

16 of the Interior the employees of the ministry are directly responsible and

17 answer to their immediate superior. Are you aware of that -- of that

18 fact?

19 A. That is certainly true, but I can't refer you to the paragraph in

20 the law. I don't know.

21 Q. And didn't Ms. Naumova also tell you that under the collective

22 agreement, as it existed at the time, and I think it's the Article I have

23 just shown you, Article 143, the under-secretary, the director of the

24 directorate, and the employees authorised by the minister are empowered to

25 initiate such proceedings. Do you remember me reading that Article to you

1 a moment ago?

2 A. I remember that you gave me some explanations, but I can't

3 remember that we discussed in particular the content of an Article. This

4 was not the intent of my visit and of my conversation.

5 Q. I apologise, Mr. Kuehnel. I think I was putting it to you that

6 the Article that I have shown you a moment ago which was Article 143,

7 paragraph 5. If you wish to see it, I can bring it back up, if you wish.

8 A. No. The problem, Mr. Mettraux, is that you want me to commit

9 myself to a statement that I cannot really give with such a degree of

10 precision. Because as I said before, this discussion with Madam Naumova

11 and her colleagues took several days, and from the organisational

12 structures, I adopted the practical approach to this work on the files.

13 It was not a legal discussion. It would be unfair to Madam Naumova and I

14 really cannot comment with such degree of precision.

15 Q. But in the practical approach which you describe you took of the

16 matter, did you come to realise that the law and practice, as applied by

17 the competent authorities at the time, was in fact for the immediate

18 superior to initiate disciplinary proceedings and that the only role which

19 the minister had in that regard was to issue general decisions as to which

20 individuals were themselves authorised to initiate such proceedings. Did

21 you become aware of that fact?

22 A. Well, I can agree with the first part of your question,

23 Mr. Mettraux. Looking through the files regularly and systemically, it

24 occurred to me that, as far as I understood, the superior of the person

25 who has committed an infringement, in regular cases, would initiate the

1 disciplinary proceedings.

2 In the second part of your question, I can agree with that, in

3 part. As I said before, in regular cases, I saw that the decision of the

4 minister was pre-formulated through the commission, sent to the minister

5 obviously then for signature.

6 But what I also saw, the third point of my answer, there were many

7 cases where the minister obviously made use of his right to amend the

8 proposal with regard to the amount of the penalty, the financial penalty,

9 or the duration of the penalty. These are points that I found when

10 reading through the files, and I could stick to that.

11 Q. Did you also become aware that it was the law and the practice in

12 Macedonia for a minister, or a minister of the interior in any case, to

13 render a general decision that would authorise certain categories of

14 employees of the MOI to initiate disciplinary proceedings. Are you aware

15 this was how it was done?

16 A. If I read the question like this, no, then I have to say that I'm

17 not aware.

18 Q. Well perhaps I will help you, Mr. Kuehnel, by showing you a

19 particular document.

20 MR. METTRAUX: Your Honour, this would be Rule 65 ter 1D1141 and

21 it is ERN 1D00-9376, and the Macedonian is 9327.

22 Q. Mr. Kuehnel, as you can see, this is a document that comes from

23 the Ministry of the Interior or Ministry of Internal Affairs. It's dated

24 the 8th of November of 1999. And it's called a decision for transmission

25 of authority for submission of proposals for starting the proceedings and

1 adopting decisions for removal from a working post in a proceeding for

2 termination of a working relation through dismissal.

3 Can you see that?

4 A. Yes, I can, Mr. Mettraux.

5 Q. I apologise. And if you look at the introductory paragraph, it

6 refers to the legal basis that is being applied in relation to this

7 particular decision and it refers to Article 165 of the Law on the Bodies

8 of Authority and also to Article 136, 141 and again 143, item 5 of the

9 collective agreements of the Ministry of Internal Affairs. Is that

10 correct?

11 A. Yes, you've read it out correctly. I agree, of course.

12 Q. And if I may ask you to then go to the first paragraph under the

13 title, decision, it starts with the word: "For submission of

14 proposals..."

15 Can you see that?

16 A. Roman I, you mean.

17 Q. Yes. I will read it out to you. It says this: "For submissions

18 of proposals for starting a proceedings for determining responsibility in

19 cases where there has been violation to the work discipline or

20 non-fulfilment of work duties as well as for issuing decision to remove an

21 employee from their working post and from the ministry and pursuant to the

22 regulations of the collective agreement of the Ministry of Internal

23 Affairs, I authorise ..."

24 And then there is a list of the categories or positions which are

25 authorised to initiate such proceedings, and under number 1 is the

1 director in the Ministry of Internal Affair for the employees deployed to

2 all organisational units in the MOI, except for security and

3 counter-intelligence directorate.

4 Is that correct?

5 A. Yes, that's correct.

6 Q. And then it mentions under number 2, "The under-secretaries of

7 police, criminal police and the authority for foreigners and immigration

8 matters for the employees deployed to these organisational units in the

9 seat of the MOI and for all employees in the composition of these services

10 in a case of absence of the authorised officials from item 5 of this

11 decision."

12 Is that correct?

13 A. Yes, that's correct. And if I read it under number 1, it also

14 seems to be the legal explanation for the practical approach for DBK to

15 have their own commission. That only -- that makes sense. Of course I'm

16 not an expert.

17 Q. Under point 6 you will see, Mr. Kuehnel, we will discuss the UBK

18 in a second.

19 Under point 3 it also authorises the assistance to the Minister of

20 Internal Affairs for the employees from the organisational units that they

21 are heading.

22 Is that correct?

23 A. That's correct, Mr. Mettraux.

24 Q. Number 4, it authorises the heads of the administrations and the

25 independent sectors in the seat of the MOIs for the employees from these

1 organisational units.

2 Is that correct?

3 A. That's correct, Mr. Mettraux.

4 Q. And on the number 5 it refers to the heads of the administrations

5 of internal affairs for the employees from those organisational units. Is

6 that correct?

7 A. That's correct, Mr. Mettraux.

8 MR. METTRAUX: And if we can turn to the next page, please.

9 As you will see, Mr. Kuehnel, the number 6 refer to the director

10 of the security and counter-intelligence directorate for the employees

11 deployed in the organisational units of DBK, is that correct.

12 A. I can see that, Mr. Mettraux, yes.

13 Q. And then under number 7 it says: The heads of the UDBK which is

14 administration of state security and counter-intelligence and the

15 independent sectors in the DBK, security and counter-intelligence

16 directorate for the employees in these organisational units, is that

17 correct?

18 A. That's correct. And also in the structure of UDBK and DBK there

19 was a change in the organisation in 2001. I think the document goes back

20 to 1999.

21 Q. Yes, that's correct. And if you look at number 8, Mr. Kuehnel, it

22 says the commander of the special task unit for the employees of the ESZ

23 special task unit. Do you see that?

24 A. Yes, I can see that, Mr. Mettraux.

25 Q. [Previous translation continues] ... that would be the Tigers is

1 that correct?

2 A. Yes, that is my understanding, yes, I agree with you.

3 Q. And if you look at Roman II it indicates that the decision enters

4 into force and terminates the validity of a decision of 4th May --

5 Your Honour, we've made a typo. It should be 1998, not 2000, and

6 1998, and we'll simply indicate that this is a draft translation at this

7 stage.

8 Do you agree Mr. Kuehnel?

9 A. Yes, I agree with Mr. Mettraux.

10 Q. And do you agree also that it was sign by the Ministry of Internal

11 Affairs in 1999, Mr. Pavle Trajanov, is that correct.

12 A. Yes, of course, Mr. Mettraux.

13 Q. And I would like to show you another document, Mr. Kuehnel, which

14 is Rule 65 ter 1D1142. And it is ERNed as 1D00-9378 and 9331 in the

15 Macedonian.

16 Mr. Kuehnel, you will see this is a decision that is very similar

17 in nature and appearance to the one that I've mentioned or shown to you a

18 moment ago. This is a decision for transmission of authority. This is

19 dated the 20th of September of 2005. It comes from the Ministry of

20 Internal Affairs of the Republic of Macedonia. Do you agree?

21 A. Yes, I agree.

22 Q. [Previous translation continues] ... And if I can draw your

23 attention to the first paragraph again do you agree that it refers to

24 Article 55, item 1 of the Law on Organisation and work of the bodies of

25 the state authority as well again as Article 136, 141 and 143, item 5 of

1 the collective agreement. Is that correct?

2 A. Yes, this is correct, Mr. Mettraux.

3 Q. If you can look at Roman I of this document, the introductory

4 paragraph says the following: "For submitting proposals for starting an

5 investigation for determining responsibility pursuant to Article 141, item

6 7, of the collective agreement of the Ministry of Internal Affairs, for

7 submission of proposals for starting an investigation for determining

8 responsibility" --

9 MS. ISSA: Sorry to interrupt, Your Honour.

10 JUDGE PARKER: Ms. Issa.

11 MS. ISSA: I just note that the date of this document is actually

12 2005. And if we look at the last page it says this decision enters into

13 force with the day it is issued.

14 So I'm just wondering what the relevance is at this point.

15 JUDGE PARKER: Mr. Mettraux.

16 MR. METTRAUX: Thank you, Your Honour.

17 Well, the relevance of this, Your Honour, is in Roman II of the

18 next page of that document, which refers to the previous decision which

19 I've shown to this witness, the decision of 8 November of 1999, this

20 decision putting an end to the previous decision which was applicable and

21 in force during the entire period that was relevant to the charges.

22 Q. Mr. Keuhnel, I apologise and I would like to read out to you once

23 again the paragraph under Roman I which says the following: "For

24 submitting proposals for starting an investigation for determining

25 responsibility pursuant to Article 141, item 7 of the collective

1 agreement, for submission of proposals for starting an investigation for

2 determining responsibility pursuant to Article 143, item 5 of the

3 collective agreement as well as for issuing decisions for removal of an

4 employee from their working post and from the Ministry of Internal Affair

5 pursuant to Article 136, item 3, of the collective agreement ... I

6 authorise."

7 Can you see that?

8 A. Yes, can I see it, Mr. Mettraux.

9 Q. And if you can look further down this document, you will see that

10 as with the previous decision, there's a number of persons or in any case

11 a number of positions that are listed as authorised persons to start such

12 proceedings. Is that correct?

13 A. Yes, I can see that, from number 1 to 6.

14 Q. And if we may turn to the next page, please. If we could go up

15 the page, please. Thank you.

16 Do you agree that under 7 it refers once again to the UBK or the

17 DBK, as it is called, is it correct, to the heads of the regional

18 departments of the UBK. Is that correct?

19 A. Yes, of course.

20 Q. And if I can draw your attention to Roman II of this particular

21 document I will read it out to you. It says this: "The entering into

22 force of this decision terminates the validity of the decision for

23 transmission of authority for submission of proposals for starting a

24 proceeding and adopting decisions for removal from a working post in a

25 proceeding for termination of a working relation through dismissal number

1 231-40631/1 of 8 November 1999."

2 Can you see that?

3 A. I can see that Mr. Mettraux.

4 Q. And do you see that this refers to the previous decision which

5 I've read to you a moment ago. Is that correct?

6 A. Yes, I agree with you, Mr. Mettraux.

7 Q. And do you agree also that this is signed by the minister of

8 internal affair at the time in 2005, Mr. Ljubomir Mihajlovski. Is it

9 correct?

10 Can you see the signature of Mr. Mihajlovski, Mr. Kuehnel?

11 A. Yes, I can see it. I was just waiting for the transcript. I

12 apologise.

13 Q. Thank you.

14 MR. METTRAUX: Would that be a convenient time, Your Honour.

15 JUDGE PARKER: We adjourn and resume at a quarter past 4.00.

16 --- Recess taken at 3.46 p.m.

17 --- On resuming at 4.17 p.m.

18 JUDGE PARKER: Yes, Mr. Mettraux.

19 MR. METTRAUX: Thank you, Your Honour.

20 Q. Mr. Kuehnel, is it correct that another matter which Ms. Naumova

21 brought to your attention is the fact that the disciplinary process and

22 the disciplinary procedure that applies within the Ministry of the

23 Interior does not apply to police reservists. Is that correct?

24 A. Yes, that's correct. That was mentioned. It was also mentioned

25 when I asked about it. I also believe that I mentioned it in -- in

1 paragraph 5 on the third page in my investigator notes, if my memory

2 serves me well. We didn't get very far on that, because I realised that

3 Ms. Naumova could not give me a reply very confidently, and I did not have

4 the competence to comment the Articles of the collective agreement that --

5 which was also handed over to me as a copy. Hence, I put down the

6 paragraph in the investigator notes as you can see it, and that's all I

7 can say about this.

8 Q. Thank you. And this may be a -- an obvious question with an

9 obvious answer, but do you agree or did Ms. Naumova make it clear to you

10 the disciplinary process of the MOI would only apply to employees of the

11 MOI. Is that correct?

12 A. I cannot remember. I would need to refer to the investigator

13 notes. But if it doesn't say so, I don't know whether the term "employee"

14 was being used or whether it was mentioned in conjunction with reservists,

15 that it is not applicable to reservists but to the others. I don't know

16 whether the term "employee" was being used.

17 Having said that, I also saw that there was a contradiction that

18 in one or two case files police reservists were mentioned in conjunction

19 with disciplinary proceedings.

20 Q. But do you agree that those who were mentioned in the context of

21 disciplinary proceedings were not those to whom a disciplinary sanction

22 was applied. Is that correct? And I mean reservists. I apologise.

23 Those reservists who were mentioned in the context of disciplinary

24 proceedings were not those to whom a disciplinary sanction was applied.

25 Is that correct?

1 A. Yes, that's correct.

2 Q. And is it correct also -- or perhaps I should put it that way.

3 Did Ms. Naumova make it clear to you that the disciplinary proceeding of

4 the MOI did not apply to employees or members of another ministry, is that

5 correct, is it something she made clear to you?

6 A. I'm quite sure that she didn't talk about another ministry. She

7 was referring to police reservists and also to the fact that you cannot

8 just reduce a salary and you can only dismiss them or only subject them to

9 a criminal charge. That is the extent of an answer that I can give you,

10 because it is a contested issue.

11 Q. And do you recall being shown a document by my colleague

12 containing a lists of -- a list of persons who document suggests were in

13 or were responsible for check-points around the village of Ljuboten in

14 August of 2001. Do you recall that document?

15 A. Yes, I can remember that. Yes, that's correct.

16 Q. And in the course of your investigation, do you recall receiving--

17 MS. ISSA: Excuse me, Your Honour. I'm sorry to interrupt. But I

18 just wonder if Mr. Mettraux can refer to the exhibit number for the record

19 of that document, please.

20 MR. METTRAUX: Yes. This would be Exhibit P537, Your Honour.

21 Q. Mr. Kuehnel, do you recall as part of your investigation to have

22 received information or material which would suggest that the check-points

23 or at least some of the check-points around Ljuboten in the month of

24 August of 2001 were mixed military and police check-points. Do you recall

25 receiving such information?

1 A. I'm not quite sure at this moment in time. Maybe you can remind

2 me to which source you're referring to? What I do know is that there were

3 mixed check-points between police officers and police reservists.

4 Q. Well, are you aware also from the review of the material that

5 you've conducted of the files relevant to this case or from the interviews

6 which you've conducted that some of the check-points around the village

7 were in fact mixed military and police check-points?

8 A. I can't quite recall that. What I can recall is police

9 check-points. I also know that the military had check-points, but as far

10 as the question of mixed check-points are concerned, I'm not quite sure.

11 But I know that in practical terms, let's say, in the position Chinese

12 wall, there were army reservists and also police officers and police

13 reservists. Yes.

14 Q. Well, perhaps I'll show you a document, Mr. Kuehnel. It's Rule 65

15 ter 1D937.

16 Mr. Kuehnel, this is a investigator's note taken by one of your

17 colleague, Mr. Ljubomir Jozefciak, and it was taken on the 26th of June of

18 2005 with a person whose name is Stojance Bogeski. And first I'd like to

19 draw your attention to the purpose of the interview of that particular

20 person.

21 And it says the following: "The person was one the reservists

22 employed in August 2001 in the area of villages Ljubanci and Ljuboten and

23 may be in possession of information shedding light on circumstances that

24 preceded killing of Ljuboten villagers during the attack against the

25 village in the period from 10 August 2001 until 12 August 2001. In

1 addition, the person could assist the ICTY in recognition of identity of

2 the regular or irregular groups of Macedonians involved in Ljuboten

3 operations."

4 Can you see that?

5 A. Yes, can I see that.

6 Q. And if you look further down under the subheading, Outcome of

7 interview, it says the following: "Stojance Bogeski was serving his

8 military reservists duty at combined military and police check-point

9 consisted of eight people crew on the road towards Ljuboten from the

10 direction of Butel."

11 Can you see that?

12 A. Yes, I can see that.

13 Q. And perhaps as a general matter do you agree that Butel is the

14 same place that is sometimes referred to as Cair. Is that correct?

15 A. It's almost correct. Butel, there are two Butels, Butel 1 and

16 Butel 2. These two names, Butel 1 and 2, describe municipalities under

17 the heading of OVR Cair, so that -- that would be precise.

18 Q. Well, I'm grateful for that, Mr. Kuehnel. Do you agree also that

19 according to Mr. Bogeski, who was an army reservist at the time the

20 check-point at which he served between Butel and Ljuboten was in fact a

21 combined military and police check-point. Do you agree with that?

22 A. That is, if you read the investigator's note, that it is only one

23 single opinion. In my opinion, as far as I know, the check-points were

24 rather separate instead of being carried out in conjunction.

25 Q. Thank you. And did Ms. Naumova, going back -- I apologise, going

1 back for a second to the issue of disciplinary matters, did Ms. Naumova

2 make it clear to you that the disciplinary process would only and could

3 only be triggered against identified individuals. Did she make that clear

4 to you?

5 A. I cannot really tell with certainty, but you could conclude that--

6 conclude that because I didn't find a single file about it. Referring,

7 for example, to an unknown perpetrator and also what Ms. Naumova explained

8 to me that the files always referred to a particular person, that is, a

9 file is started with a name of a particular person, so you can conclude

10 that from that.

11 Q. Thank you. You will recall, Mr. Kuehnel - and I move on to a

12 different subject - that you were shown two documents and if you need me

13 to show them to you, I certainly will. The first document was a draft

14 resolution prepared by ten members of the Macedonian parliament, I believe

15 sometimes in March of 2001, and the second document which was related to

16 this particular document was a letter of November of 2001, signed by the

17 minister of the interior, Mr. Boskoski. Do you remember those two

18 documents? They are exhibit P531 and P532.

19 A. Yes, Mr. Mettraux, I can remember both documents.

20 Q. And are you aware of the fact, Mr. Kuehnel, that the government of

21 the Republic of Macedonia at the time supported the view of Mr. Boskoski

22 and did not support the proposed resolution that had been prepared by ten

23 members of parliament. Are you aware of that fact?

24 A. No, I'm not. This goes beyond my horizon and beyond my status of

25 knowledge.

1 Q. And are aware perhaps that in November 2001 there were two ethnic

2 Albanian political parties who were members of the government at the time.

3 Is that correct?

4 A. Yes, one could put it that way. I am not quite clear about the

5 entire political composition of the government.

6 Q. Are you perhaps aware that the PDP, one of those two ethnic

7 Albanian parties, was a faction within the government in November 2001.

8 Are I aware of that?

9 A. I'm not quite sure, but I think you're right. There was a change

10 in the year 2001, but I think are you correct in what you say.

11 Q. And the PDP was the same political party as the party from which

12 the ten Members of Parliaments were members. Is that correct?

13 A. That may well be. I don't know the individual ten members, but I

14 am just go along with what you say rather than basing this on my own

15 knowledge.

16 Q. Well, perhaps I will show you the document then.

17 MR. METTRAUX: Your Honour, this would be Exhibit P532.

18 Q. Mr. Kuehnel, you have the document in front of you.

19 And if we can turn to the third page first, please.

20 You see, Mr. Kuehnel, there's the name of the ten Members of

21 Parliament with their signature. The signature only appears in the

22 original Macedonian but the names of the people are listed here. Is that

23 correct?

24 A. Yes. I can see that, and I agree.

25 Q. And if we can turn, please, to the previous page, page 2 of that

1 document.

2 If you can look at the top of the page, Mr. Kuehnel, can you see

3 that the proposer of the draft resolution is a PDP assembly group. Is

4 that correct?

5 A. Yes, Mr. Mettraux, that is correct. Thank you for putting this in

6 front of me. I'm quite sure now.

7 Q. Thank you. And is it correct that in -- or are you aware that in

8 November of 2001 the minister of justice at the time was himself of

9 Albanian ethnicity. Are you aware of that fact?

10 A. Yes, that must be correct.

11 Q. And that the deputy minister of the interior at that time was also

12 himself an ethnic Albanian, is that correct?

13 A. Well, you're reaching the boundaries of my knowledge, I'm afraid.

14 I really couldn't give you their names.

15 Q. Well, do you know perhaps a person by the name of Refet Elmazi?

16 A. Yes, of course, I've heard the name.

17 Q. And do you agree that at the time in November of 2001 Mr. Elmazi

18 was the deputy minister of the interior in the government?

19 A. Yes, I agree.

20 Q. And are aware of the fact that the draft resolution which we still

21 have in front of us was actually never put to the agenda of the

22 parliament. Are you aware of that fact?

23 A. No, I'm not aware of that.

24 Q. I'd now like to turn to a different document, Mr. Kuehnel. And,

25 again, I will simply ask you whether you can recall being shown a list of

1 individuals who, on the 26th and 25th of July of 2006, received guns and

2 equipment at PSOLO station. Do you recall that?

3 A. Yes, I do recall that, Mr. Mettraux.

4 Q. And is it correct that one of the name to which your attention was

5 brought was the name of a person called Goce Ralevski. Is that correct?

6 A. That's correct, Mr. Mettraux.

7 Q. And is it correct that at the time, Mr. Ralevski was an employee

8 of the parliament of the Republic of Macedonia. Is it correct?

9 A. Yes. To be more precise, he -- in the print shop, so to speak, in

10 parliament. He was a worker obviously there in the print shop.

11 Q. I'm grateful for the specification, Mr. Kuehnel.

12 And is it correct that as part of your investigation you also had

13 the opportunity to interview a number of the people who appear on that

14 list, the list from PSOLO. Is that correct?

15 A. That's correct, Mr. Mettraux. I believe there were about 19 or

16 maybe 15 persons. I'm not quite sure about the actual number, but it is

17 around about this order of magnitude.

18 Q. And is it correct quite a few of them told that you they had not

19 been in Ljuboten during the weekend 10 to 12 of August, 2001. Is that

20 correct?

21 A. Yes, that's correct. In fact, all of them said that they were

22 not there.

23 Q. And is it correct also that a number of them indicated to you that

24 they had not received any guns or ammunition on that particular occasion.

25 Is that right?

1 A. That is correct. And, in fact, not all of these people on the

2 list, I think there were more than 80, received guns and ammunition in

3 these two days, and uniforms. I believe around 50 or 53 persons you can

4 see on the list were beside the name numbers are entered. This refers to

5 the persons who received weapons, ammunition and a uniform.

6 Q. I'm grateful for that, Mr. Kuehnel.

7 And I'd like to ask you just a few general questions. I'm going

8 to ask you a number of questions about particular people you've

9 interviewed, but just as a general matter is it correct that when taking a

10 statement from a witness or a possible witness in a case you enter some

11 information and detail about the person that you are interviewing on the

12 first page of the statement. Is that correct?

13 A. Yes, of course, that's correct.

14 Q. And you also enter a number of pieces of information which relate

15 to the circumstances in which the interview was taken, such as the time,

16 the location, the language that is being used, and the people present

17 during the interview. Is that correct?

18 A. Yes, of course.

19 Q. And you will agree that the purpose of these indications is for

20 the reader of the statement to be able to ascertain the circumstances

21 under which the statement was taken. Is that correct?

22 A. Yes.

23 Q. And do you agree that's an element that I've indicated here that

24 one of the fact, one of the matter which you point out on the cover page

25 of the statement is the fact that someone other than yourself and the

1 witness may be present during the interview. Is that correct?

2 A. Yes, that's correct.

3 Q. And is it correct that when you interviewed Mrs. Zenep Jusufi in

4 Ljuboten, her husband Elmaz Jusufi was present. Is that correct?

5 A. That's correct and not correct. I know what you're aiming at.

6 The statement of Mrs. Jusufi made it here. And from that, there seems to

7 be a contradiction in the witness's statement referring to the people who

8 were present during the interview.

9 Q. But is it correct that during the interview of Zenep Jusufi, her

10 husband was present, Elmaz Jusufi. Is that correct?

11 A. That is not quite correct. Mrs. Jusufi is right of course that

12 Mr. Jusufi was present in the same house. The interview was on the same

13 day as I interviewed Mr. Jusufi. I know about the relationship between

14 these two married people, and I know about the personality of Mr. Jusufi

15 and the cultural and gender issues.

16 Concerning the interview, the narrative part, I can say that the

17 conversation with Mrs. Jusufi took place in the same house but in a

18 different room. And of course, Mrs. Jusufi did say that Mr. Jusufi was

19 present.

20 It was my intention to speak to Mrs. Jusufi alone, and this is

21 what I did, with the interpreter, in the corridor before the entrance I

22 asked questions of her, and she responded in her own language and to the

23 best of her ability.

24 Q. [Previous translation continues] ...

25 A. One moment, please. And she told me the state of things as she

1 knew them.

2 Afterwards, and I certainly admit this, it is possible that when

3 we were writing the report on the facts, we went into the room where I

4 left my laptop, and Mr. Jusufi was there. And I knew that we were going

5 to talk about this today, and so I went back to the interpreter who was

6 with me then, who is today living in Albania, and confirmed that this was

7 in fact the case. But any sort of intervention on the part of Mr. Jusufi

8 was something which I did not accept. It was not necessary. And if you

9 read the interview of Mrs. Jusufi as I have recorded it, Mr. Mettraux, you

10 will see it is a very simple interview, which corresponds to the

11 relatively simple linguistic capabilities of Mrs. Jusufi, but especially

12 for this reason, because she overcame this major barrier to talk to me

13 alone, I was very impressed about the way in which she illustrated the

14 facts.

15 Q. So you found --

16 A. Perhaps I could finish my sentence?

17 Should I have made a mistake by not mentioning that Mr. Jusufi was

18 possibly there during the read-back, then I admit that this was my fault.

19 Q. And I think you've indicated it, Mr. Kuehnel, the importance of

20 that fact was, as you indicated, not only that the people would be talking

21 of the same subject but also because of cultural considerations. Is that

22 correct?

23 A. Cultural and gender consideration.

24 Q. And so that we understand your evidence properly on that point,

25 Mr. Kuehnel, is the evidence that you conducted the interview in the

1 absence of Mr. Jusufi but in the presence of the interpreter and that

2 Mr. Jusufi was present only during the read-out of the statement which you

3 had prepared. Is that correct?

4 A. That's fairly correct.

5 Q. There is another witness, Mr. Kuehnel, that I would like to ask

6 you about, and the witness is Mr. Hutsch.

7 Do you recall interviewing Mr. Hutsch on the 25th, 26th, and 27th

8 of August of 2005?

9 A. Yes, that's correct.

10 Q. And is it correct that at the time you alone were interviewing

11 Mr. Hutsch. Is that correct? In other words, there was no one else

12 present during that interview.

13 A. I really can't remember. If you show me the first page of this

14 interview ...

15 Q. Yes.

16 MR. METTRAUX: If the witness can please be shown Rule 65 ter

17 1D234, please.

18 Q. Mr. Kuehnel, I believe the entry name of all persons present

19 during the interview is the last category on this page, at the bottom of

20 this page. Is that correct?

21 A. Yes, that's correct.

22 Q. And other than you and Mr. Hutsch, no one else is mentioned. Is

23 that correct?

24 A. That is correct, yes.

25 Q. And would that suggest that there was only he and yourself present

1 during that interview?

2 A. In principle, yes, of course.

3 Q. And if you can look at the language used during the interview, it

4 says English. Is that correct?

5 A. Yes, that's correct.

6 Q. And are you aware of the fact that Mr. Hutsch in his evidence

7 before this Chamber said that the language which had been used between him

8 and yourself was in fact German. Is that correct? I mean, are you aware

9 of that fact?

10 A. Of course both of us spoke English and German. But I had to write

11 it down in English.

12 Q. And you didn't mention the fact that the interview had been done,

13 in part, in German. Is that correct?

14 A. Yes. That may well be. Today, of course, I assume that I spoke

15 to him in German.

16 Q. Is it correct that one of the claim which Mr. Hutsch made to you

17 when you interviewed him is that he went to the village of Ljuboten on the

18 12th and 14th of August. Do you recall him saying that?

19 A. Yes.

20 Q. And do you recall that he said that on both occasions he had been

21 accompanied by his interpreters. Do you recall that?

22 A. He referred to this several times, that he was out with his

23 interpreters, that's correct.

24 Q. And as part of your investigation, Mr. Kuehnel, did you meet with

25 any of those interpreters?

1 A. No.

2 Q. Is it correct, Mr. Kuehnel, that only a few days after you had

3 interviewed Mr. Hutsch, your office received a letter from the lawyer of

4 Mr. Hutsch in Germany. Do you recall that?

5 A. That is possible, yes. But I don't know exactly.

6 Q. Well, perhaps do you recall that the lawyer of Mr. Hutsch in

7 Germany was essentially asking for a character letter from your office in

8 relation to litigations concerning accusations that he had made up or

9 fabricated stories. Are you aware of that?

10 A. That's correct. But I don't know what you mean by a character

11 letter. He certainly wanted some sort of information, that is correct,

12 and this referred to his participation as a witness in the Milosevic

13 case. And as far as I can recall, there was a contentious point part of

14 his statement, I'm not quite sure. But that is correct, there was

15 something.

16 Q. And do you recall that in that letter from Mr. Hutsch's lawyer of

17 31st of August 2005, less than a week after you interviewed him, the

18 lawyer asked that in this document which they wished to receive from you,

19 it should be pointed out, among other things, that Mr. Hutsch was regarded

20 as a honourary and reliable witness. Do you recall that?

21 A. If you could submit the letter to me.

22 Q. Certainly.

23 MR. METTRAUX: Could the witness please be shown Rule 65 ter

24 1D924.2, please.

25 Q. And there will be a German -- there is no German version, I

1 apologise, Mr. Kuehnel, but just looking at the letter, this is dated the

2 31st of August of 2005. This is directed to Mr. William Smith of the

3 ICTY.

4 And perhaps I should ask you this as a preliminary matter. Is it

5 correct that Mr. William Smith was the counsel or legal -- the trial

6 attorney in charge of the case during that period. Is it correct?

7 A. If you mean the Ljuboten case when you say "this case," that is

8 correct. Mr. Smith was the trial attorney for this case.

9 Q. And the letter sayings: "Dear Mr. Smith, we are coming back on

10 the telephone conversation you have just had with Mr. Hutsch. We are

11 representing Mr. Hutsch in a German lawsuit against the newspaper FAZ, and

12 the author, Mr. Rub, who falsely accused Mr. Hutsch of several things

13 concerning his testimony in front of the ICTY."

14 Can you see that?

15 A. Yes, I can.

16 Q. And then in the next paragraph they ask you to provide a

17 memorandum prepared by your office, and in the next sentence it should

18 say -- it says that it should, among others, point out that Mr. Hutsch was

19 regarded an honourary and reliable witness.

20 Can you see that?

21 A. Yes, I can.

22 Q. And perhaps I should ask you this: As part of your investigation

23 did you contact the newspaper, the FAZ, the Frankfurter Allgemeine Zeitung

24 or the author in question, Mr. Rub, to verify what this litigation was

25 about?

1 A. No, I did not do this at any time, and I can say quite openly that

2 this did not interest me. It was not part of my investigation.

3 Q. Did you conduct a background check of Mr. Hutsch, Mr. Kuehnel?

4 A. To a certain extent, yes, because Mr. Hutsch was unknown to me

5 previously. I didn't know anything about this person, and in both witness

6 statements what I wrote about his curriculum vitae, these were points that

7 I asked him and this is what I wrote into my report. I can remember that

8 at some time somebody asked about the Milosevic trial, but who that was,

9 I'm not quite sure, because, as I said before, this is a person who was

10 unknown to me previously. I didn't know him at all.

11 Q. Do you recall that in his statement, for instance, Mr. Hutsch

12 mentioned a name or a person by the name of Schmidt Bauer. Do you recall

13 that?

14 A. Yes, I do. Schmidt Bauer, yes, I do remember.

15 Q. And do you recall that Mr. Schmidt Bauer, who is now a member of

16 the German Parliament, used to be a state secretary of Germany. Do you

17 recall that?

18 A. That is correct.

19 Q. And do you recall Mr. Hutsch suggesting that you should conduct

20 Mr. Schmidt Bauer if there's any question raised about his integrity? Do

21 you recall him saying that?

22 A. Yes, that might well be, yes.

23 Q. And did you call Mr. Schmidt Bauer to ask him what he thought

24 about Mr. Hutsch?

25 A. I can't remember. I don't know. No idea.

1 Q. But would you be surprised if rather than praising Mr. Hutsch,

2 Mr. Schmidt Bauer would describe him as a fabricator?

3 A. That might be. There are many different opinions about

4 Mr. Hutsch. That is part of his -- the reality of his profession as a

5 journalist. It is normal that some people have a good opinion of

6 Mr. Hutsch; some people don't.

7 Q. Did you collect some of the stories written by Mr. Hutsch in

8 various newspapers?

9 A. I can remember that I think we attached articles to his

10 statement. I can also remember, and I think this is something to do with

11 you, Mr. Mettraux, that because of one of your inquiries we contacted him

12 about some sort of article which he wrote perhaps for the Hamburger

13 Abendblatt newspaper.

14 Q. Did you become aware of two articles or pieces written by

15 Mr. Hutsch in which he claimed to reprint articles -- I'm sorry,

16 interviews which he said he had had with Arkan and President Trajkovski.

17 Have you seen those pieces?

18 A. Good question. I don't know. I cannot give you an answer at this

19 moment in time. Could be that we talked about it, could or not. That's

20 beyond my scope of interest.

21 Q. But did you become aware that those two articles or interviews

22 were printed, both of them, after the death of the person who had

23 allegedly been interviewed. Did you become aware of that?

24 A. I don't know. Of course, I could have started an investigation

25 about it if it seemed important to me or if I had been asked to do so, but

1 I didn't do any background checks through the steps about Mr. Hutsch.

2 There was no time to do that, anyway. At least I didn't have time.

3 Q. Did you become aware of another story which was made public by

4 Mr. Hutsch whereby he claimed to have obtained information from a

5 body-guard of Mr. Karadzic to the effect that NATO troops had tipped off

6 Mr. Karadzic shortly before an attempted arrest. Are you aware of that

7 story?

8 A. All in all, I know about it, yes. This -- I know that this -- I

9 have heard of this information about this story, but as far as the truth

10 is concerned about the whole matter, I cannot tell you.

11 Q. But are you aware of the fact that this story was denied by both

12 NATO and all intelligence sources in the area at that time. Are you aware

13 of that?

14 A. Yes, I think it's fair to say yes. But I would like to restrict

15 that because I didn't read the denials myself. But I think you are right

16 in the way you are presenting the matter.

17 Q. And perhaps you will be more familiar with some problems which

18 Mr. Hutsch had in the press in Germany with the BND, the German secret

19 services. Are you aware of any problems that Mr. Hutsch with the -- in

20 particular the former head of the German secret services?

21 A. I am aware of that. I also looked at the page that was written by

22 Mr. Hutsch and I think I also put it down in the statement, I also have

23 general knowledge because of my own post, because of my own nationality

24 about this "scandal" but without having heard the name Mr. Hutsch in

25 conjunction with that. But that was general knowledge.

1 Q. And did you ever contact the BND, of the German secret services to

2 know exactly what was happening with Mr. Hutsch in relation to this

3 matter.

4 A. No, I haven't. No, I haven't done it all for this purpose.

5 Q. Did you conduct an investigation as to where Mr. Hutsch was

6 receiving his money from, where he obtained his revenues from?

7 A. No, I haven't. Absolutely not. Absolutely not.

8 Q. And did you contact any members of the family of Mr. Hutsch to

9 verify any aspect of the story he had told you?

10 A. No, I haven't done that. And I haven't done it with any other

11 witness, either, in this case. We have talked to a great number of

12 international witnesses, but I didn't, no. No.

13 Q. And when Mr. Hutsch told you about his alleged whereabouts during

14 the time-period relevant to this case, did you check his passport to see

15 the Visas, the entry Visas on his passport?

16 A. No, I didn't do that, either. I only did that in one other case

17 over the whole period of investigations for Ljuboten, that I looked at the

18 stamps and the registrations made in the passport of a person.

19 Q. And that person, just to be clear, was not Mr. Hutsch. Is that

20 correct?

21 A. No. It wasn't Mr. Hutsch.

22 Q. Did you consult the records of immigration in Macedonia to check

23 with them when Mr. Hutsch entered and exited the country?

24 A. I haven't done this either, Mr. Mettraux. I'm tempted to say of

25 course, because I didn't do that either with any other international

1 witnesses.

2 Q. And did you inquire with Mr. Hutsch why he had never registered as

3 a journalist in Macedonia, if you were aware at the time that this was the

4 case?

5 A. No, Mr. Mettraux. I haven't done that either.

6 Q. And is it correct, Mr. Kuehnel, that sometimes ago after the

7 testimony of Mr. Hutsch, you went back to the hotel, Hotel Dal Met Fu, in

8 which Mr. Hutsch claimed to have stayed during particular periods of time

9 to verify the log-book, we call them that, in which certain entries of the

10 guests were made, the guest book perhaps would be better. Is it correct?

11 A. Yes, of course, that's correct. At that moment in time, I was

12 already in Macedonia when Mr. Hutsch made this statement, and then I got

13 the order from senior trial attorney Mr. Saxon to go to the hotel and to

14 look into the matter.

15 But, without being given the name of Mr. Hutsch I was asked to go

16 to the hotel and to look at the guest books of the hotel, and he asked me

17 to copy them.

18 Q. Is it correct, Mr. Hutsch [sic], that you formed the view that one

19 of those two books appeared to you to be somewhat newer than the other.

20 Is it correct?

21 A. I think there's a mistake in the transcript. The question was

22 asked and it wasn't -- it wasn't given, it's not correct in the

23 transcript.

24 Q. I think you're being polite with me, Mr. Kuehnel. I think the

25 fault might have been mine rather than the court recorder.

1 Is it correct that you formed the view after having reviewed the

2 two books of -- the two guest books that one of them, it seemed to you, to

3 be somewhat newer than the other. Is it correct?

4 A. That is correct. But this comment is taken out of the context as

5 I put it down in my investigator's notes.

6 Q. Mr. Kuehnel, I don't want to put it out of context and the second

7 things which you said -- and I believe again correct me if you think it

8 misquotes what you said, but you indicated also carefully that you were

9 not an expert in these matters and also that you had no indication that

10 the document had been falsified or tampered with. Is that correct?

11 A. This is correct. But I have uttered my doubts as to how it can be

12 read.

13 Q. Did you seize these books, Mr. Kuehnel, on behalf of the

14 Prosecution?

15 A. No. That was not possible. I even asked to make a copy and I was

16 denied that on my first visit, and when this matter was clarified, I was

17 then given permission and told that only employees of the hotel could make

18 the copy, but when I made another request about the photocopies and told

19 them what I would like to be copied, and then the corresponding pages were

20 copied for me but with redactions. So that other names, other guests and

21 their personal data could not -- they were not legible.

22 Q. Is it correct that the person who made those copies for you or

23 explained to you that the reason for redacting the others was, in his

24 view, to protect the privacy of the other guests. Is that correct.

25 A. Yes, the person who made the photocopies was a different person

1 from the person who gave this information to me as -- that you are

2 describe -- describing correctly. The information was given by the hotel

3 manager and the photocopy was made by the receptionist or both

4 receptionists who shared the task.

5 Q. And is it correct, Mr. Kuehnel, that you did not submit these

6 books to any sort of expert to analyse them. Is that correct?

7 A. It is correct. That's not possible for me and I was -- it was

8 denied to me taking -- to take these books away. I wasn't even given

9 permission initially to have a look at the books. I think I've already

10 described it in my investigator's notes, also in the succession of

11 events. If you want me to, I can give a more detailed answer if you deem

12 it to be necessary.

13 Q. Did you ask the hotel owner that you met, or manager, I think you

14 said, or the people at the reception whether the book, guest books had

15 been falsified or otherwise tampered with? Did you ask them that?

16 A. I did it the other way, I asked whether I could have a look at the

17 original books and whether these were the books that were already -- that

18 were used at that moment in time and I got an affirmative answer that

19 these had been the books that were being used from day one on a daily

20 basis.

21 Q. And did you specifically ask them whether there had been any

22 tampering or falsification of the book or not?

23 A. No, because I already got the affirmative answer that these were

24 the original books. But I tried to get -- find it out -- find out myself.

25 Q. Did you ask the hotel owner or other personnel that assisted you

1 whether the two books had been bought at the same time.

2 It should have been bought.

3 A. No, I haven't.

4 Q. Did you inquire whether the two books had been kept in the same

5 location at all times?

6 A. On the day when I arrived, they were taken from the shelf, but

7 after -- it didn't seem to be the case that they could have been used at

8 the same time, because initially book number one would have been used and

9 the book that was currently being used was being kept near the reception

10 area.

11 Q. And did you seek to verify with the department or the section of

12 the Ministry of Interior concerning the registration of tourists in

13 Macedonia whether the guest books of the hotel matched those of the MOI?

14 Did you try to verify this?

15 A. No, I didn't do that. It wasn't part of my order. I didn't do

16 that.

17 Q. And did you verify -- I think you answered it, but I wish to ask

18 you nevertheless. Did you verify with the immigration authorities whether

19 the entries made in the book, in particular as regard Mr. Hutsch, were

20 consistent with those of the guest book?

21 A. No, I didn't do that, Mr. Mettraux.

22 Q. Is it correct that another matter which Mr. Hutsch told you about

23 when you interviewed him was that he had recognised a number of persons in

24 the village of Ljuboten on the 12th of August of 2001. Is that right?

25 A. Yes, that's correct.

1 Q. And is it correct, as far as your memory can recall, that three

2 persons that he mentioned as having seen on that day were a person by the

3 name of Jonce Popovski, someone by the name of Toni Stojkovski and someone

4 called Goran Georgievski. Can you recall these names being given to you

5 by Mr. Hutsch?

6 A. Yes, it's correct, Mr. Mettraux. These three names are mentioned

7 in a paragraph of the statement and I got these names from Mr. Hutsch.

8 Q. Were you able to interview Mr. Jonce Popovski?

9 A. No.

10 Q. And is it correct that you made a specific request to the Ministry

11 of the Interior to locate and interview Mr. Popovski. Is that correct?

12 A. I'm not quite sure whether we sent out a specific request or just

13 a summons, but I think it must have referred to all three persons. With

14 regard to Mr. Georgievski I was told that this person must have died and

15 he must also be known under the name of Mujo and in that case, he must

16 have been killed when there was a shooting in a bar.

17 As far as the other two persons are concerned, as far as I can

18 remember, they could not be located by the ministry, so this is as far as

19 my recollection goes.

20 Q. Did you get suspicious, Mr. Kuehnel, at all when of the three

21 persons Mr. Hutsch mentioned as having seen, two could not be located by

22 the Ministry of Interior as having been employees of that ministry and the

23 third one was dead?

24 A. In retrospect, of course I was interested in identifying these

25 persons, and as said, one died in a shooting in a bar, and if -- if can I

1 remember correctly that the other persons could not be located, then this

2 is probably -- the reason must be sought in -- from the ministry, but not

3 in a statement of the witness. I think you have to consider both sides.

4 The statements made by Mr. Hutsch was also -- they were also very

5 superficial with these names.

6 We finished -- our attempts were then finished after we didn't get

7 anywhere.

8 Q. Did you ever consider the possibility that there was, for

9 instance, no such person in the MOI named Jonce Popovski?

10 A. That's possible. But I didn't look further into the matter. But

11 I didn't have the other information either that a person of such a name

12 existed.

13 So this is where the trace for me ended.

14 Q. There's another witness which I would like to ask you about,

15 Mr. Kuehnel.

16 MR. METTRAUX: Your Honour, could we move in private session for a

17 moment.

18 JUDGE PARKER: Private.

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25 [Open session]

1 THE REGISTRAR: Your Honours, we're in open session.

2 MR. METTRAUX: Your Honour, I apologise for being five minutes too

3 long, but I have no further questions.

4 Q. And I'm grateful to Mr. Kuehnel.

5 JUDGE PARKER: Thank you, Mr. Mettraux.

6 [Trial Chamber confers]

7 JUDGE PARKER: Mr. Kuehnel.

8 THE WITNESS: [Interpretation] I beg your pardon, Your Honour, I

9 just want to correct something, one of my previous statements, if

10 possible, just to be correct.

11 I'm referring to the question asked by Mr. Mettraux about the

12 first interview with Mr. Hutsch, regarding the presence of other persons.

13 That's all correct how the way I put it, but during the break I thought

14 about it again, and just to be correct, if I remember rightly, because it

15 was the first interview, there was no interpreter present, and before Mr.

16 Hutsch signed the interview, somebody from the OTP helped me to put it

17 into correct English. But this did not refer to the presence during the

18 interview, and I think can I remember that it was a member of one of our

19 teams, Ms. Sampson, but I just wanted to clarify the matter in order to

20 make the clear understanding possible. Maybe I should have put it down

21 in writing, but I think this is precise enough now.

22 JUDGE PARKER: Mr. Mettraux, does that give rise to anything

23 further?

24 MR. METTRAUX: Not at all, Your Honour, and I'm grateful to

25 Mr. Kuehnel.

1 JUDGE PARKER: Thank you.

2 Mr. Apostolski, would have you an estimate of the time you would

3 need?

4 MR. APOSTOLSKI: [Interpretation] Your Honours, good evening. I

5 would like to indicate that I had a conversation during the break with my

6 learned friend, Ms. Issa, and that I believe we will manage to finish the

7 testimony of this witness tomorrow.

8 I wish to mention that the Chamber indicated yesterday that we

9 would need to discuss about the progress and the court schedule.

10 JUDGE PARKER: I'm coming to that, Mr. Apostolski. I'm just

11 wanting to learn where you are with your time.

12 MR. APOSTOLSKI: [Interpretation] Yes.

13 JUDGE PARKER: You would see yourself finishing in the course of

14 tomorrow?

15 MR. APOSTOLSKI: [Interpretation] No, Your Honours. I will finish

16 in the course of the first session tomorrow and my colleague from the

17 Prosecutor's office told me that she will manage to finish tomorrow, her

18 re-direct.

19 JUDGE PARKER: Thank you, Mr. Apostolski. I think in view of

20 that, we might do you the favour of suggesting that you commence tomorrow

21 morning.

22 MR. APOSTOLSKI: [Interpretation] Yes.

23 JUDGE PARKER: And we'll get on and deal with these other matters

24 now and if I could indicate, Mr. Kuehnel, that we're going to now look at

25 the future timetable and I think in those circumstances we should indicate

1 that you are free to go this evening, and your evidence will continue

2 tomorrow at 2.15.

3 THE WITNESS: [Interpretation] I'm very grateful for that. Thank

4 you. Good-bye, Your Honours.

5 [The witness stands down]

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13 There are, of course, at this moment, three outstanding motions

14 dealing with the admission of documents. It can be anticipated they'll be

15 dealt with and finalised in the course of this week, although to that end,

16 one of them, moved by the Prosecution on the 14th of November, would

17 normally not have to be responded to by the Defence until the 28th of

18 November. The Chamber would urge both Defence teams to try and respond to

19 that by Friday of this week. That may be difficult for Mr. Apostolski,

20 although he has a contingent of helpers, but he himself could be busy

21 tomorrow but it would be possible for Ms. Residovic and her team to put

22 their response in. That will enable us to deal then with that final

23 submission and the other two as well by then.

24 The Chamber does not want at this stage to bind any member of the

25 Defence to a position and it may be that it is not possible to give an

1 indication at this point, but we do inquire whether it is anticipated that

2 there will be any motion under Rule 98 bis, because that will affect

3 timetabling.

4 Are you, Ms. Residovic, in a position to give an indication at

5 this stage?

6 MS. RESIDOVIC: [Interpretation] Your Honours, the Defence does not

7 have its final position yet, whether it will use its right and file a

8 motion under the 98 bis rule. I will of course be able to do it at the

9 moment when the Prosecutor closes his case, and if we decide, if we opt

10 for that, we would then ask the Chamber to allow us a period of two weeks.

11 JUDGE PARKER: Under the Rule, the submission is to be made at the

12 close of the Prosecution case, made orally and the Chamber dispose of it

13 orally, and in our last case that was done on the day, the whole thing.

14 MS. RESIDOVIC: [Interpretation] Yes, Your Honours, we are aware of

15 the court practice, and because of that we haven't decided yet whether we

16 will inform the Chamber -- whether we will avail ourselves of this

17 possibility at all and we are aware that this motion is made orally and

18 that the Chamber decided shortly on the motion submitted.

19 Thank you.

20 JUDGE PARKER: Thank you.

21 Mr. Apostolski, is your position any different?

22 MR. APOSTOLSKI: [Interpretation] With regards to the 98 bis rule,

23 my position is almost identical to that of my colleague Edina Residovic,

24 but with regards to the previous issue, I would like to ask the Court to

25 give me time until Monday to respond to the Prosecution's proposal, since

1 we asked the Prosecutor to submit to us by Friday, the complete diary of

2 the witness M-048 so that we can speak on that.

3 THE INTERPRETER: Interpreter's correction, M-084.

4 MR. APOSTOLSKI: [Interpretation] Because the subject of the

5 submission is only a part of the diary of the witness M-084.

6 [Trial Chamber confers]

7 JUDGE PARKER: 26th it will be, Mr. Apostolski, for that response.

8 MR. APOSTOLSKI: [Interpretation] Thank you, Your Honours.

9 JUDGE PARKER: [Microphone not activated].

10 Mr. Saxon.

11 MR. SAXON: Your Honour, I'm very sorry to interrupt. May we go

12 into private session briefly, please.

13 JUDGE PARKER: Private.

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2 [Open session]

3 THE REGISTRAR: Your Honours, we're back in open session.

4 JUDGE PARKER: Now, on the assumption that we can close the

5 Prosecution case by Friday, the 30th of December [sic], and if there

6 should be a Rule 98 bis motion by either or both Defences that it can be

7 disposed of Monday and Tuesday, the 3rd and 4th of December.

8 The question then arises as to the time that counsel for the

9 Defence would think reasonable to finalise the preparation of their

10 Defence. The -- including the list of witnesses and the list of exhibits

11 that are required by Rule 65 ter (G), that list of witnesses having to

12 have the details specified in sub-paragraphs little roman (a) to little

13 roman (f), and included in that is the anticipated duration of the cases

14 of each of the accused. All of this of course assumes that there is

15 either Rule -- no 98 bis or that the Rule 98 bis submission does not

16 succeed. Should there be such a submission and should it succeed, what

17 we're talking about will never come to pass. But we must look at the

18 other alternative from a planning viewpoint, and the question then is the

19 time duration that counsel would need to prepare those lists and file them

20 and serve them, and the time after that by which they would be ready to

21 commence leading evidence, and the duration of their respective cases as

22 much as can be ascertained at the present time.

23 Are you able to assist us in those regards, Ms. Residovic?

24 MS. RESIDOVIC: [Interpretation] Your Honours, we, at this moment,

25 just as I said before, have not made a final decision about how many

1 witness we're going to call, but we can give an approximate assessment

2 that Defence of Mr. Boskoski will not call more than ten to 15 witnesses,

3 and -- and a couple of 92 bis witnesses.

4 For preparation of the Defence, we believe it would be a

5 reasonable period of time if the Chamber approves four weeks before the

6 disclosure of evidence, thinking that we could hardly prepare for adequate

7 Defence if that period is shorter than three weeks.

8 In addition, Your Honours, we would like to pay your attention

9 that all of the tasks that the Defence has to prepare the documents of the

10 Defence, to which you just paid our attention and also in the witness

11 proofing, it happens in the time of holidays. Normally we as Defence

12 counsels do not think whether we will be working in that period or not,

13 because our obligation as Defence counsels is, of course, beyond the

14 forthcoming holidays, but we would like to pay your attention that in the

15 Republic of Macedonia where we will be doing the preparation of our

16 defence, due to the multi-ethnical and multi-religious population, all

17 holidays of all peoples and religions groups are state holidays, so on the

18 20th of December, we have the holiday Bajram followed by the Catholic

19 Christmas and New Year. After that, 7th of January is the orthodox

20 Christmas and 13th of January is the orthodox old/new year.

21 Those are all holidays during which state institutions do not

22 work, and majority of population and let me say potential witnesses use

23 the days off and are outside Skopje. Some of them even out of the

24 Republic of Macedonia, which we were already indicated to.

25 So, Your Honours, when we say four or minimum three weeks to

1 prepare our Defence we would kindly request from the Chamber to have these

2 facts into account.

3 Thank you.

4 JUDGE PARKER: Is it possible to give an approximate indication of

5 the duration of the case?

6 MS. RESIDOVIC: [Interpretation] Your Honours, I said at this

7 moment, we believe that we would call maximum ten to 15 witnesses, which

8 means that after the closing of the Prosecution case this number can even

9 be reduced. But at this moment, we are not able to assess the right

10 period. Maybe the Trial Chamber is expecting this from us, but until the

11 Prosecution closes its case, we cannot make an assessment, and this

12 assessment will not be absolute, but it's not an assessment that could

13 give the Trial Chamber a vision how much the Defence of Mr. Boskoski would

14 last.

15 JUDGE PARKER: We're not holding you to any fixed time, but ten to

16 15 witnesses, they can be short witnesses or long witnesses, so are we

17 looking at ten days, 15 day, 30 days?

18 MS. RESIDOVIC: [Interpretation] If we call an expert, they would

19 probably be a witness that would take longer time, if we assume one week.

20 Other witnesses, we believe will not be witnesses that will require a long

21 time for direct examination.

22 JUDGE PARKER: We need to make an assessment of both direct and

23 cross-examination and that, of course is what the Rule will require that

24 you estimate as well.

25 The three to four weeks that you indicated, that was a time when

1 you would be ready to commence your case?

2 MS. RESIDOVIC: [Interpretation] Yes, Your Honours. Four weeks,

3 unless we don't use 98 bis.

4 JUDGE PARKER: Thank you.

5 Mr. Apostolski.

6 MR. APOSTOLSKI: [Interpretation] Your Honours, I support the

7 presentation of my colleague Edina Residovic with regards to the period

8 that we might need to prepare for our Defence case.

9 I wish to indicate to the Court that we, the Tarculovski Defence,

10 would call around 10 viva voce witnesses. I could not give you the 98 bis

11 witnesses number.

12 With regards to the time that we would need for the Defence of

13 Johan Tarculovski to present its case, first, I wish to indicate and I

14 wish to congratulate, because this is the 100th date since the start of

15 this case, and I wish to indicate that in our assessment, we would take

16 some six weeks, including also the expert witness.

17 JUDGE PARKER: On a very rough rule of thumb, we'll have to allow

18 some eight weeks for the Defence case of Mr. Boskoski and some six weeks

19 for your own. That's three and a half to four months from when we can

20 commence, and if we are able to reach the close of the Prosecution case by

21 the end of next week and deal with Rule 98 bis, if there is a motion to be

22 dealt with, that would mean we would not be commencing Defence evidence

23 until either the week commencing Monday, the 21st of January, or the week

24 commencing Monday, the 28th of January, and we would be looking then at --

25 into May for the close of the Defence cases.

1 [Trial Chamber confers]

2 JUDGE PARKER: Ms. Residovic.

3 MS. RESIDOVIC: [Interpretation] Your Honours, I have just read

4 that you indicated that the 98 bis request should be made on the 3rd and

5 the 4th of December. I would like to ask Your Honours, if possible, to

6 make it on the 6th and 7th of December, because the Appellate Court sits

7 in the case Hadzihasanovic and Kubura on the 4th and 5th, and I being the

8 Defence for the General Hadzihasanovic would find it difficult to be

9 present in the session where I would present the 98 bis request.

10 JUDGE PARKER: Well, it is possible that the close of the

11 Prosecution case could be earlier, in which event that problem would go

12 away, but, otherwise, we will take notice of your concern with the Appeals

13 Chamber.

14 MS. RESIDOVIC: [Interpretation] Thank you very much.

15 JUDGE PARKER: Well, we need to finish now. I'm afraid what has

16 been discussed reveals that this trial is going to take even longer than

17 we had come to anticipate. I know we all started with the thought the

18 whole of the trial could be over in less than six months, but as has been

19 indicated, we've reached 100 days, we have passed six months, and we now

20 have December and January, which will be very busy months for the Defence,

21 but they will, nevertheless, not be months in court. So we will not be

22 getting into evidence.

23 The Chamber will give consideration to your suggestions and

24 anticipations, to try and settle some more clear pattern of critical

25 events, but, really, we must wait on news of the arrival of the next

1 witness before we can really set any sort of firm timetable.

2 May I thank counsel for their assistance today, and we will

3 adjourn and continue with the evidence of tomorrow at 2.15.

4 --- Whereupon the hearing adjourned at 7.02 p.m.,

5 to be reconvened on Wednesday, the 21st day of

6 November, 2007, at 2.15 p.m.

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